How ‘Aaron’s Law’ Is Good for Business

I knew Aaron Swartz since before he could shave, and I regard his loss as one beyond reckoning. To me he was a Keats, a Byron, a Shelley or a Mozart: one of those rare and original souls — a true genius — who changed the world for the better before dying way too soon. He was just 26 when he took his own life on January 11, leaving behind a string of achievements that would make an accomplished geezer proud.

Yet Aaron is perhaps best known for getting caught while sneakily downloading a large number of academic journal files at MIT. Why Aaron did this is not clear and may never be. What is clear is that he violated terms of use for the files. For that and related alleged offenses, federal prosecutors threw the book at him: thirteen felony counts. On the penalty side, that book had life-threatening clout: fines that could run past a million dollars, plus dozens of years in jail. Despite being warned that Aaron was a suicide risk, the prosecution pressed ahead. Their final bargain was six months and a guilty plea. Aaron wasn’t willing to accept that. Nor, apparently, was he ready to face a trial.

While Aaron’s life story is over, a new one begins for the book prosecutors threw at him. In “Ham Sandwich Nation: Due Process When Everything is a Crime,” Tennessee law professor Glenn Reynolds summarizes the problem we need to solve: “Given the vast web of legislation and regulation that exists today, virtually any American is at risk of prosecution should a prosecutor decide that they are, in (former Supreme Court Justice Robert) Jackson’s words, a person ‘he should get.'”

To reduce that risk, Zoe Loffgren, a Democrat representing Silicon Valley, is drafting a bill titled “Aaron’s Law” for the House Judiciary Committee. The draft is short: just one page. Lawrence Lessig, a Harvard Law professor and longtime friend and mentor of Swartz, says the law “would limit the scope of the Computer Fraud and Abuse Act and exclude ‘crimes’ that are nothing more than a breach of contract. Violations of a website’s ‘terms of service’ would be a breach, not a crime.” (Note: Prof. Lessig will give a lecture on Aaron’s Law on Feburary 19 at Harvard Law School. It will be webcast.) Scott Shackford of Reason puts a gust of libertarian wind behind the same sail: “A memorial law that actually tries to reduce governmental authority — will wonders never cease?”

While few of us have been accused of the crimes for which Aaron was indicted, all of us are exposed by the common practice of agreeing to one-sided terms of service we never bother to read, because it would take too much time and there’s no point to it anyway. This norm has been with us for so long that we have also forgotten the principle it flouts. That principle is freedom of contract.

A contract, simply put, is a law that agreeing parties make for themselves. Thanks to freedom of contract, any two of us can arrive at binding agreements without government help or interference. (At least until a dispute arises. That’s where contract law comes in.) Freedom of contract, however, proved inconvenient when mass markets arose, and companies needed to do business the same way with millions of customers at once. Thus was born a legal hack: “standard-form” non-negotiable contracts. With these the company provides all the terms, and the customers’ only choice is to accept those terms or do without.

Handy as this hack was in the age of mass marketing, it has become a massive source of friction for everybody interacting with services on the internet today. You experience that friction every time you pause to accept some “agreement” you don’t read. According to a Carnegie Mellon report, it would take the average college educated person about 76 work days to read all of the privacy policies an average Internet user encounters in a year. And those are just policies. Terms of service are a separate pile of text and tend to run even longer.

Consider how obsolete this norm has become in an age when our main tool for interacting electronically with the marketplace is a smart mobile device, running up to hundreds of apps that are updated almost constantly. To minimize legal frictions, we should be able to form and end agreements, on the fly, by automatically matching up personal and corporate terms and policies. Developers and market-friendly lawyers are already working on simple ways of doing that — ways that put freedom of contract to work in a fully modern way. Passing Aaron’s Law is a step in that same direction.

While Aaron’s Law is not required to fix the standard-form contract bug (developers will take care of that one), it is required to prevent federal prosecutors from wasting our time. Or, in cases like Aaron’s, our lives as well.

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